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June 6, 2007

Insights for SCOTUS-watching season

The next few weeks are prime SCOTUS time, which means the media and commentators have a lot to discuss as we await the final rulings of the term. Thanks to Howard Bashman, here are a number of new interesting pieces for SCOTUS-watchers:

From Joan Biskupic here in USA Today: "In June, getting five justices to agree isn't so easy; Dissenters always try to pick off one to get a majority."

From Marcia Coyle here in the National Law Journal: "Despite Docket Drop, Justices Face Packed Homestretch; After 'B-movie' term, will Supreme Court make blockbuster rulings in final weeks?".

From Michael Dorf here at FindLaw: "A Mootness Dismissal Illustrates the Supreme Court's Split Personality: Is it a Constitutional Court or a Court of Error?".

June 5, 2007

Will SCOTUS take up supervised release revocation issue?

I am very pleased to discover that SCOTUSblog has listed the Faulks case I involved with in its list of "petitions to watch" in the Supreme Court's upcoming conference this Thursday. I have previously discussed the Faulks case here and here, and I will have my fingers crossed hoping for good news when the Justices announce new cert grants next Monday. Here our pitch for cert and the main questions presented from our initial petition (which is available here; BIO here; reply here):

In 1998, following a jury conviction, Judge Rebecca Beach Smith sentenced Celestine Faulks to the Guidelines-maximum term of 30 months in prison and five years' supervised release. Seven years later, as Faulks's term of supervision was nearing completion, a federal probation officer alleged that Faulks had committed a state crime in violation of a condition of her release. Faulks denied the allegation. At a revocation hearing under 18 U.S.C. § 3583, Judge Smith decided disputed questions of identity, actus reus, mens rea, and witness credibility using a civil standard of proof. Judge Smith found Faulks guilty of the alleged offense and sentenced her to a three-year term of imprisonment. This case presents two questions:

1. Whether a federal judge may, consistent with Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), impose upon a former federal offender a new three-year term of imprisonment based solely on the judge's disputed factual findings, by a preponderance of the evidence, that the former offender committed a state offense during her term of supervised release.

2. Whether proceedings in which federal judicial officials initiate, investigate, and adjudicate disputed allegations that a former federal offender has violated a condition of supervised release by committing a state offense violate the constitutional guarantees of the Fifth and Sixth Amendments as set forth in Apprendi, Blakely, and Mine Workers v. Bagwell, 512 U.S. 821 (1994).

Reasonableness review revisions (and revolutions?)

As highlighted by two posts at SCOTUSblog, the state and fate of reasonableness review in the Supreme Court may be evolving even though the Rita decision may still be weeks away. First, Tom Goldstein here, rethinking his prior authorship prediction, now says Justice Breyer is likely "writing at least one of the opinions in the sentencing cases." Of course, as of this writing, there is only one remaining sentencing case, Rita, after the Claiborne case went away due to the defendant's death (basics here).

But, as detailed in this post by Lyle Denniston, the Solicitor General, through this new filing, has now "urged the Supreme Court ... to grant review in a new Sentencing Guidelines case replacing one that has been ordered vacated, and suggested that the new case could be decided before the Court finishes the current Term, perhaps later this month." The new case, as previously previewed here, is Beal v. US (docket 06-8498).

As I explained in this post, I am not too keen on SCOTUS rushing through a new set of facts in Beal to address the issues raised Claiborne. That said, I think the SG is absolutely right when he says, in this latest SCOTUS filing, that the "federal criminal justice system has a great need for this Court's guidance concerning the nature and scope of review of out-of-guidelines sentences under Booker."

Because so many issues of sentencing law and policy intersect in the Supreme Court's sentencing cases (as I detailed in this post), I still believe the Supreme Court would be wise now to invest its time and energy in getting Rita right and then subsequently gear up to hear and decide out-of-guidelines issues next Term. However, the SG obviously has a uniquely informed perspective on these federal criminal justice issues, and this Beal might be on the fact track to the Supreme Court reporter.

Anyone want to hazard a new prediction on what exactly the Justices will now do with reasonableness review (and when they will do it)?

Lots of sentencing action in the Circuits

Though I am still sorting through all the Libby sentencing news (basics here and here), I have also noticed consequential sentencing rulings from a lot of federal circuit courts today. In addition to the DC Circuit ruling previously blogged today, the Third, Sixth, Seventh and Ninth Circuits all also have (lengthy) published decisions on a variety of distinct and important sentencing issues.

Based on very quick reads, I think think the Tenth Circuit work in Pruitt yesterday (discussed here) is the best long circuit read for sentencing fans this week. But, perhaps readers can point me to holdings or passages in today's copious circuit work that should not be overlooked.

Now we get to debate bail pending appeal (and a pardon) for Libby

This new AP article about the Lewis Libby sentencing indicates that Judge Walton has decided to take extra time and briefing on bail pending appeal for Libby:

Walton did not set a date for Libby to report to prison. Though he saw no reason to let Libby remain free pending appeal, Walton said he would accept written arguments on the issue and rule later.

Jeralyn here at TalkLeft has this helpful report about what is to happen now:

The Probation Department has to recalculate the guidelines grouping the obstruction, perjury and false statement charge. The judge has stayed imposition of the sentence. No decision on bond pending appeal today or voluntary surrender today, but Libby goes home. Briefs will be filed on the appeal bond issue, it will be heard a week from Thursday at 1:30.

So, Libby will surely remain free at least until Thursday, June 14. Even if Judge Walton denies bail pending appeal, Libby likely won't be expected to surrender until the end of June (during which time Libby's team might appeal to the DC Circuit the denial of bail pending appeal).

This timeline is significant not only because it provides a lot of time for the inevitable pardon talk to get going, but also because the Supreme Court will likely decide the Rita case in the next few weeks. If Victor Rita's within-guideline sentence is reversed as unreasonable, I think Libby's team could have some strong new arguments on a variety of sentencing issues (which, in turn, could further support his arguments for bail pending appeal).

Libby gets within-guideline sentence of 30 months

As detailed in this early report from the AP, "Lewis 'Scooter' Libby, former chief of staff to Vice President Dick Cheney, was sentenced Tuesday to 30 months in prison for lying to investigators about what he told reporters about CIA operative Valerie Plame.... He also was fined $250,000."

I believe Judge Walton accepted the government's proposed sentencing enhancement and then sentenced at the bottom of the applicable range, but I am not sure. More details to follow, with early comments from readers highly encouraged. (For now, let me just say that I hope that Libby's sentence is the basis for a question at tonight's Republican candidates debate.)

UPDATE:TalkLeft has lots of good coverage, including this post with links to all the letters sent to Judge Walton. I'd be grateful for reader help to identify which letters seem particularly notable.

Also, let me not forget to note that this sentence is still three months shorter than the sentence given to Victor Rita for very similar — though, in my view, less serious — crimes (as discussed here and here).

It is fun to speculate whether this sentence for Libby could impact some of the Justices' views (or dicta) as the wrap up a decision in Rita. I also think this reality highlights the mistake made by the defense team to not try to put off sentencing until after the Justices rule in Rita.

A call for truly public executions?

This new AP article, headlined "Botched injections inspire fight to ID executioners," discusses the efforts of the ACLU of Ohio to seek information about the persons involved in Ohio's execution procedures. The article cover this ground effectively and has a quote from the DPIC's executive director that almost make a call for truly public executions:

Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center, which opposes the death penalty, said the public can't properly scrutinize the effectiveness of capital punishment without adequate information on those carrying it out. "Public executions should be as public as possible," he said. "They supposedly have nothing to hide, and as with anything government does, it benefits from more scrutiny. For medical personnel, yes, there may be a cost. But that's sort of like the cost that the state, or all of us, bear."

But death penalty advocates such as Michael Rushford, president of the Criminal Justice Legal Foundation in Sacramento, California, accuse capital punishment opponents of wanting to expose members of execution teams to intimidate them.

As I have suggested in a number of prior posts, I believe we ought to at least be making video recordings of executions. These recordings need not be made available to the public — but perhaps should be subject to public disclosure if there are no objections from the families of the victims and the executed defendant — in order to ensure we have an evidentiary record of executions that goes beyond just eye-witness accounts.

The DC Circuit today in US v. Baker, No. 06-3115 (DC Cir. June 5, 2007) (available here), upset a conviction because the district judge was too involved in plea discussions. Here is how the opinion begins and concludes:

Kenneth C. Baker pled guilty to a five-count indictment in federal district court, for which he received a 51-month sentence. On appeal, Baker argues his guilty plea and sentence must be set aside because the court impermissibly and prejudicially participated in plea negotiations with him. We find Baker's arguments persuasive and therefore vacate the judgment of the district court and remand for further proceedings....

We are convinced by our review of the entire record that the district court here had only good intentions in attempting to facilitate a plea agreement initially believed to be advantageous to all involved, did not intend to coerce an involuntary plea, and attempted to remedy its error during the plea colloquy with Baker. Nonetheless, Rule 11's strict prohibition exists because judicial participation in plea discussions is inherently coercive.

Issues to watch in Lewis Libby's sentencing

As detailed in this AP article, this morning is the scheduled federal sentencing of Lewis "Scooter" Libby in DC District Court. The article ponders the interesting question of whether Libby himself will speak as part of the sentencing proceeding. Here are some other issues I'll be will be watching:

1. Will Judge Walton accept the PSR's guideline recommendation (setting the advisory sentencing range at 15-21 months' imprisonment) or will he apply the enhancements urged by the government (which bump the range up to 30-37 months)? This new Time article unpacks this aspect of the case.

2. Will Judge Walton grant a "traditional departure" on any of the grounds urged by the defense? TalkLeft covers some of these issues here.

3. Will Judge Walton follow the guidelines (with or without a traditional departure) or will he impose a non-guideline sentence?

4. If judge Judge Walton gives some term of confinement to Libby, will he grant bail pending appeal?

Of course, these questions all serve a prelude to the pardon debate that will surely heat up in the days ahead, especially if Libby gets a prison sentence and bail pending appeal is not granted.

Late Monday the Tenth Circuit issued a lengthy opinion in US v. Pruitt, No. (06-3512 (10th Cir. June 4, 2007) (available here), that provides a thoughtful examination of post-Booker realities in the course of affirming a within-guideline sentence of 292 months for a woman who pled guilty to meth distribution. At least until we get a ruling in Rita, Pruitt is a must-read for everyone thinking about the review of within-guideline sentences after Booker. (Orin Kerr at Volokh agrees in this post with good comments.)

The majority opinion in Pruitt, authored by Judge Holloway, provides 26 pages of cogent explanations for why the defendant's many arguments "failed to rebut the presumption of reasonableness accorded to her within-Guidelines sentence." Judge McConnell adds a terrifically insightful 21-page concurrence, which begins with this candid observation:

[A]fter watching this Court — and the other Courts of Appeals, whether they have formally adopted such a presumption or not — affirm hundreds upon hundreds of within-Guidelines sentences, it seems to me that the rebuttability of the presumption is more theoretical than real. In view of the resources devoted to appeals of within-Guidelines sentences, it might be better if we were more candid in acknowledging this.

Read together, the opinions in Pruitt come close to admitting that the presumption of reasonableness for within-guideline sentences is, in practice, a per se rule of reasonableness wheever the district court sufficiently explains why it sentenced within the guidelines.

Death qualification and the embrace of jury sentencing in capital cases

Because so few offenders — even so few murderers — are subject to capital punishment these days, the Supreme Court's split ruling in Uttecht v. Brown (opinion here; media coverage here) likely has more symbolic import than practical impact. (For those interested in the practicalities of capital jury selection, Karl Keys here at Capital Defense Weekly and Lyle Denniston here at SCOTUSblog cover this ground very well.)

Though various messages might be found in Uttecht v. Brown, I must highlight that the intricate (and widely-debated) issue of "death qualification" of jurors in capital cases flows from the broad consensus that jurors — and not judges — should be the primary sentencing decision-makers when death is an available sentencing option. In my sentencing classes, I encourage students to contemplate exactly why society generally favors jury sentencing in the capital context and yet seems to resist jury sentencing in other settings.

Regular readers know that I have become a believer in Blakely rights, and the entire Blakely line of cases has led me to think a lot more about the virtues and vices of true jury sentencing in non-capital cases. The Uttecht v. Brown ruling provides another opportunity to ponder just why true jury sentencing is the accepted norm in capital cases, but is the exception in most other types of criminal cases.

June 4, 2007

Shouldn't SCOTUS just do Rita right and go from there?

As noted here, the Supreme Court officially took the Claiborne case off its docket through this per curiam opinion that vacates the Eighth Circuit's opinion in the wake of Mario Claiborne's death (basics here). But this expected move now raises a host of questions about what the Justices will and should do with the important issues raised and extensively briefed in Claiborne.

As detailed here, Claiborne's lawyer has suggested an alternative case, Beal v. U.S. (docket 06-8498), for the Court to take up in order to be able to address directly reasonableness review in a case involving a below-guideline sentence. I believe the SG's office has not yet officially weighed in on this suggestion, though perhaps something will be filed soon in the wake of the Court's official ruling in Claiborne.

For a variety of reasons, I hope SCOTUS does not take up and rush through another case to replace the Claiborne case. Claiborne involved a distinct set of facts built on a unique lower court record. Though perhaps the Justices had a view of the Claiborne case that was not focused on its unique facts, all sound sentencing determinations are necessarily fact- and context-specific. (Indeed, as I argued in various amicus filings in Claiborne and Rita (available here), 3553(a) can be understood to demand fact- and context-specific reasoned judgments by district courts at initial sentencings and by circuit courts applying reasonableness review.)

Though lower courts certainly need additional SCOTUS guidance on how to deal with below-guideline arguments and sentences, the Justices still can and should address the most pressing post-Booker issues through a complete ruling in Rita. Though the Roberts Court has tended toward narrow rulings, I believe both judicial modesty and doctrinal clarity can be best served if the Court provides a thorough analysis and ruling in Rita and then just waits to consider and address other post-Booker issues through the Court's standard review procedures.

Condemned inmate making the death penalty a laughing matter

Though this AP story about a Texas defendant scheduled to be executed later this month might seem like a joking matter, thoughtful readers can find some deep issues within. Here are highlights:

A condemned inmate wants to leave them laughing. Patrick Knight is collecting jokes and will pick the funniest one for his last statement before he is set to die June 26 for shooting his neighbors, Walter and Mary Werner, to death almost 16 years ago outside Amarillo.

Randall County Sheriff Joel Richardson thinks the whole idea is insensitive. "This tells you a little bit about the guy's character, anyway," said Richardson, who was chief deputy at the time of the Werners' killings and plans to witness Knight's execution....

Knight acknowledges there's nothing funny about his execution. "I'm not trying to disrespect the Werners or anything like that," he told The Associated Press from death row. "I'm not trying to say I don't care what's going on. I'm about to die. I'm not going to sit here and whine and cry and moan and everything like that when I'm facing the punishment I've been given.

"I'm not asking for money. I'm not asking for pen pals or anything like that. All I'm asking for is jokes," Knight said. He's had about 250 wisecracks mailed to him on death row or e-mailed to a friend who has a Web site for him. "Lawyer jokes are real popular," he said....

Knight said he got the idea for a joke as his last statement after a friend, Vincent Gutierrez, was executed earlier this year and laughed from the death chamber gurney: "Where's a stunt double when you need one?"

In addition to the other sentencing action from SCOTUS today, the Justices also vacated a ruling of the Tenth Circuit in a prison conditions case in Erickson v. Pardus, No. 06-7317 (S. Ct. June 4, 2007) (available here). Here is how the opinion begins:

Imprisoned by the State of Colorado and alleging violations of his Eighth and Fourteenth Amendment protections against cruel and unusual punishment, William Erickson, the petitioner in this Court, filed suit against prison officials in the United States District Court for the District of Colorado. He alleged that a liver condition resulting from hepatitis C required a treatment program that officials had commenced but then wrongfully terminated, with life-threatening consequences. Deeming these allegations, and others to be noted, to be "conclusory," the Court of Appeals for the Tenth Circuit affirmed the District Court's dismissal of petitioner's complaint. 198 Fed. Appx. 694, 698 (2006). The holding departs in so stark manner from the pleading standard mandated by the Federal Rules of Civil Procedure that we grant review. We vacate the court's judgment and remand the case for further consideration.

Notably, Justice Thomas has a one-paragraph substantive dissent and the decision indicates separately that "Justice Scalia would deny the petition for a writ of certiorari." I would guess that 7-2 per curiam opinions are relatively rare, though the substantive issue perhaps made the Court's procedural approach to this case sensible (even though its cert docket needs filling).

Though Erickson will surely get lost in the discussion of other SCOTUS activities today, this decision could be a profound practical significance. I sense that prisoner suits often can get summarily (and too quickly) dismissed; Erickson sends a strong message to lower courts to be more careful and conscientious when dealing with these matters.

Eighth Circuit rules on Missouri LI litigation

This morning the Eighth Circuit finally decided Taylor v. Crawford, No. 06- 3651 (8th Cir. June 4, 2007) (available here), which addrssses lethal injection issues in Missouri. Here is the official summary of the ruling from the unanimous panel of the Eighth Circuit:

District court's judgment holding Missouri's lethal injection protocol for imposition of death sentence unconstitutional is reversed. Revised written protocol does not rise to the level of creating a constitutionally significant risk of pain. The 5-gram dose of thiopental properly delivered by qualified medical personnel, a three-minute wait before injecting final two chemicals, and physical examination to determine level of consciousness is sufficient. Continuous monitoring by anesthesiologist or by additional equipment is not justified.

After this decision, one must wonder whether the next stop for Missouri death row defendants will be: (1) en banc review in the Eighth Circuit? (2) the Supreme Court's docket? or (3) the death chamber? You make the call.

SCOTUS dismisses Claiborne, again rules 5-4 in a capital case

After a few quite sentencing weeks, SCOTUS did a lot this morning that sentencing fans will find interesting. SCOTUSblog is, of course, the place to get all the early reports, and here are the sentencing highlights thanks to Lyle Denniston:

The Supreme Court on Monday threw out the case of Claiboirne v. U.S. (06-5618), because the individual involved, Mario Claiborne of St. Louis, Mo., had died last week. The Court ordered an Eighth Circuit decision in the case vacated as moot. The case involved the question of whether it is presumed to be unreasonable for a federal judge to impose a below-Guidelines range sentence, if there were no extraordinary circumstances in the case. The Court took no immediate action on a plea to grant review in a substitute case from the Eighth Circuit raising the same issue....

The Supreme Court, dividing 5-4, ruled on Monday that federal courts must defer to trial courts in deciding whether to remove a juror from a death penalty trial because of the potential juror's views about capital punishment. The Court said that the trial judge "is in a superior position" to make that decision. The case was Uttecht v. Brown (06-413), with the Court reversing the Ninth Circuit Court. Justice Anthony M. Kennedy announced the decision of the majority, and Justice John Paul Stevens responded from the bench for the dissenters.

Commentary will follow on both of these developments later in the day.

Paris Hilton starts serving time in low-budget jail

As detailed in this AP story, "Paris Hilton checked into a Los Angeles County jail to begin a three-week stay for violating her probation in an alcohol-related reckless driving case." Here are more notable details about her incarceration:

Hilton will be housed in the "special needs" unit of the 13-year-old jail, separate from most of its 2,200 inmates. The unit contains 12 two-person cells reserved for police officers, public officials, celebrities and other high-profile inmates....

"I did have a choice to go to a pay jail," Hilton said Sunday, without giving details. "But I declined because I feel like the media portrays me in a way that I'm not and that's why I wanted to go to county, to show that I can do it and I'm going to be treated like everyone else. I'm going to do the time, I'm going to do it the right way."

An effective primer before the Libby sentencing

In this piece at TomDispatch.com, former federal prosecutor Elizabeth de la Vega, who has been writing about the Valerie Plame case since 2005, provides a lesson in "Sentencing for Dummies" in anticipation for tomorrow's sentencing of Lewis "Scooter" Libby. Here are some snippets from an interesting piece:

Given that, as the government points out, Libby used his position in the White House to commit the crime for which he was convicted; that he has not used his law license for many years and would likely never have to again; that the families of all defendants' suffer and that, unlike most defendants, Libby has a massive legal defense trust fund; that he committed his crime not once, but four times over a period of many months; and that doesn't think he did anything wrong, I suspect the judge will not be giving Libby probation....

Because of this almost universal disconnect over the case, I would not be surprised to find that, even if Judge Walton imposes a sentence of 37 months -- which I believe would be entirely warranted -- many people, particularly those who have most ardently supported the effort, will find the event anticlimactic and vaguely dispiriting.

I make this prediction in part because such is the nature of sentencing proceedings. Having participated in hundreds of sentencings, I've found nearly every one to be dispiriting at some level. Strangely -- especially given that I was there as a prosecutor -- I often felt sorry for the defendant and, even more often, sympathized with the defendant's family and friends. At the same time, I was always heartbroken by the effects of the crime on the victims and knew that the pain they had been caused was not going to end simply because the defendant was heading off to prison. Sentencings have an aura of finality -- and simplicity -- that is invariably more illusory than real.

June 3, 2007

Will SCOTUS address Claiborne's fate on Monday?

On Monday morning, the Supreme Court will release orders and probably a few new opinions. Before last week, I thought there was a chance that we might decisions in the Claiborne and Rita reasonableness case as early as this Monday (although wiser folks than me had predicted the middle of June for these critical rulings on Booker's meaning and impact on federal sentencing).

However, the death of Mario Claiborne (details here) would seem to ensure that SCOTUS will need more time to sort out these matters. Thus, I think the chief issues now are whether the Supreme Court's orders on Monday will include some formal action on the Claiborne case and will provide some indication on how the Justices plan to handle these matters going forward. Any predictions, dear readers?